Daniel Hemel on the Supreme Court Under Trump

The Supreme Court Under Trump Probably Will Look a Lot Like the Supreme Court Under Obama

Before Antonin Scalia died, the median Justice on the Supreme Court with respect to most issues was Anthony Kennedy. After Donald Trump fills the Scalia vacancy, presumably the median Justice on the Supreme Court will be Anthony Kennedy again. This assumes, of course, that the 46 Democrats and two independents in the Senate do not filibuster a Trump nominee and that Trump nominates someone to the right of Anthony Kennedy. I also assume that Justice Kennedy will not retire under a President Trump, as important elements of Kennedy’s legacy (most notably, Obergefell) will be at risk if the Court swings to the right. Justice Kennedy as the median Justice? That’s a world familiar to us all.

Okay, you say, but what if Justice Kennedy or a Justice to his left leaves the Court involuntarily in the next four years? In tax law, we’re statutorily required by 26 U.S.C. § 7520 to make these kinds of calculations in order to determine the value of annuities, life interests, and remainders for estate and gift tax purposes. The exercise implicitly (or really, explicitly) forces us to contemplate tragic events involving ourselves and our family members. The analytical tools developed for the exercise also apply to matters of deep national as well as personal significance. 

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